Opinion
Docket No. CR-001547-22BX
09-28-2022
The People of the State of New York v. Cartagena (I), Defendant.
For the People: Darcel Clark, District Attorney of Bronx County (by ADA Kaitlin Grossbauer) For Mr. Cartagena: The Bronx Defenders (by Oded Oren)
Unpublished Opinion
For the People: Darcel Clark, District Attorney of Bronx County (by ADA Kaitlin Grossbauer)
For Mr. Cartagena: The Bronx Defenders (by Oded Oren)
Wanda L. Licitra, J.
The People here filed their "certificate" of discovery "compliance" even though they had not disclosed several NYPD materials related to the case. First, the People had not disclosed an NYPD "prisoner movement slip" and mugshot, dismissing them as "mere administrative records." Second, the People had not disclosed memobooks for six NYPD officers involved in the case, deeming some "duplicative" of body-worn camera footage, others "not relevant to the prosecution," and all as not automatically discoverable. Third, the People had not disclosed DD5s from an NYPD "companion case," numbered 2022-541, that is explicitly related to this criminal case. Fourth, the People had not disclosed a "scratch" NYPD domestic incident report-the original, handwritten report of a prior incident-again deeming it "duplicative" and not automatically discoverable. And fifth, the People did nothing regarding misconduct records for the police officers involved in this case, deeming them all as categorically undiscoverable.
In sum, the People failed to comply with the mandatory discovery law. Under that law, before stating ready for trial, the People must disclose "all" items and information in their or the police's possession that "relate to the subject matter of the case." (C.P.L. §§ 245.20[1], [2]; 245.50[1], [3]). This mandate "virtually constitute[s] 'open file' discovery, or at least make[s] 'open file' discovery the far better course of action to assure compliance." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10). "If something is in the prosecutor's file (or that of the police investigating agency)... it should invariably 'relate to the subject matter of the case' and will need to be disclosed." (People v. Lustig, 68 Misc.3d 234, 239-40 [Sup. Ct., Queens County 2020] [internal quotation marks omitted]).
The People's claim that they have unilateral authority to deem NYPD documents in the police file as undiscoverable violates the discovery statute. Except for a few narrow exceptions, those choices are "not for the People" to make. (People v. Best, 2022 NY Slip Op. 50859[U], at *7 [Crim. Ct., Queens County 2022]; People v. Demonia, 74 Misc.3d 752, 759 [County Ct., Ulster County 2022]). If the People wish to deem information from the police file as "non-discoverable," then "they must follow the process" in Article 245. (Best, 2022 NY Slip Op. 50859[U], at *7). "[P]rior to filing the certificate of compliance," they must "seek a protective order" and ask a court to "rule as to whether the People may withhold" the documents. (Id.; Demonia, 74 Misc.3d at 759 [same]). Here, they never did that. Instead, they did what they "may not do"-they "file[d] a certificate of compliance in which they claim[ed] to have exercised due diligence and turned over all known material and information while at the same time not actually turning over all known material and information." (People v. Quinlan, 71 Misc.3d 266, 271 [Crim. Ct., Bronx County 2021]; People v. Adrovic, 69 Misc.3d 536, 574 [Crim. Ct., Kings County 2020] [same]).
As a result, the People's certificate of discovery compliance was not proper, and their statement of readiness was illusory. Because the People failed to file a proper certificate within the speedy-trial time, the Court must grant the defense's C.P.L. § 30.30 motion to dismiss.
I. The People's obligations under Article 245
Article 245 of the Criminal Procedure Law requires that the People "actually produce[]" automatic discovery to the defense. (People ex rel. Ferro v. Brann, 197 A.D.3d 787, 787-88 [2d Dep't 2021]; C.P.L. §§ 245.20[1], 245.20[2]). Automatic discovery includes "all" items and information in the People's possession that "relate to the subject matter of the case." (C.P.L. § 245.20[1]). The People's "possession" includes discoverable material that is in the possession of the police, (C.P.L. § 245.20[2]), and favorable information that is "known to police," (C.P.L. § 245.20[1][k]; cf. People v. Garrett, 23 N.Y.3d 878, 887-88 [2014] [excluding impeachment information "known only to police" from the People's constructive knowledge for constitutional due-process purposes]).
The statute imposes legal duties on both the People and the police to "ensure" that the People comply with automatic discovery. (See, e.g., People v. Edwards, 75 Misc.3d 433, 441-42 [Crim. Ct., NY County 2021] [Weiner, J.]). First, Article 245 requires that the prosecutor "shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and his or her office." (C.P.L. § 245.55[1]). Second, the statute mandates that, "upon request by the prosecution," the police "shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article." (C.P.L. § 245.55[2]).
Under Article 245, the People's "obligations to provide discovery" are "so broad" as to "virtually constitute 'open file' discovery, or at least make 'open file' discovery the far better course of action to assure compliance." (Hon. William C. Donnino, Practice Commentaries, C.P.L. § 245.10). Indeed, the "opening language" of the statute "itself points towards an 'open file' discovery policy." (Id.). It requires the People to disclose "all" items and information in their possession that "relate to the subject matter of the case," "including but not limited to" an enumerated list of items. (Id.).
Therefore, "[i]f something is in the prosecutor's file (or that of the police investigating agency)... it should invariably 'relate to the subject matter of the case' and will need to be disclosed," unless it is work-product or subject to a protective order. (Lustig, 68 Misc.3d at 239-40); see also C.P.L. § 245.20[7] [establishing a statutory presumption favoring disclosure]; People v. Payne, 75 Misc.3d 1224 [A], at *3 [Crim. Ct., Bronx County 2022] ["The Court strains to imagine a situation where material contained within records in the People's case file would somehow not 'relate' to the case."]).
When the People have "actually turn[ed] over all known material and information," they must certify it. (Quinlan, 71 Misc.3d at 271; Adrovic, 69 Misc.3d at 574 [same]). They must do so by filing a "proper" certificate of compliance ("COC"). (C.P.L. § 245.50[3]). The statute defines a "proper" COC in "subdivision one" of C.P.L. § 245.50. (Id.). Specifically, it defines a proper COC as one that is filed" [w]hen the prosecution has provided the discovery required by subdivision one of section 245.20," except for materials that are lost, destroyed, or under a protective order. (C.P.L. § 245.50[1] [emphases added]).
Indeed, that is precisely what the statute directs the People to do in their certificate of compliance. They must certify that they have complied -that "the prosecutor has disclosed and made available all known material and information subject to discovery." (Id. [emphasis added]). Alongside this plain text, courts hold that a COC "[can]not be deemed complete" until discovery is "actually produced" to the defense. (Ferro, 197 A.D.3d at 787-88; Quinlan, 71 Misc.3d at 271 [requiring that the People file a COC only after they "actually turn[ed] over all known material and information"]; Adrovic, 69 Misc.3d at 574 [same]).
A "proper" COC is a prerequisite to a valid statement of readiness. (C.P.L. §§ 245.50[3]; 245.50[1]). Absent special circumstances, the People cannot state ready for trial without first filing a proper COC. (C.P.L. § 245.50[3]). Contrary to the People's oft-made claim otherwise, a trial readiness determination is "not a sanction" pursuant to C.P.L. § 245.80. (People v. Martinez, 75 Misc.3d 1212 [A], at *6 [Crim. Ct., NY County 2022]; People v. Darren, 75 Misc.3d 1208 [A], at *5 [Crim. Ct., NY County 2022] [same]). Where the People do not comply with their automatic discovery obligations, they do not do what is necessary to stop the speedy-trial clock.
Though the People refer to it throughout their response, "prejudice," which is a consideration for C.P.L. § 245.80 sanctions, is "not a factor" in a C.P.L. § 30.30 analysis. (Adrovic, 69 Misc.3d at 574; see also Darren, 75 Misc.3d 1208[A], at *5 [same]; People v. Diaz, 75 Misc.3d 314, 320 & n.3 [Crim. Ct., Bronx County 2022] [same]; People v. Pierna, 74 Misc.3d 1072, 1089-90 [Crim. Ct., Bronx County 2022] [same]; Quinlan, 71 Misc.3d at 272 [same]). "[T]he People's obligation to provide discovery, and to certify compliance with that obligation, is not relieved by an absence of prejudice to the defendant." (Id.). "Therefore, while a defendant must show some prejudice in order to obtain a sanction against the People under C.P.L. 245.80, the burden is not lifted from the People to comply with their obligation in the first instance." (Id.; see also Hon. Barry Kamins, Bail and Discovery Reform: The Third Round, N.Y.L.J. [June 6, 2022] ["One must distinguish this discretionary type of dismissal [in C.P.L. § 245.80], however, from a dismissal under C.P.L. § 30.30, which is mandatory when based on a failure of the prosecutor to file a valid certificate of compliance."]).
The discovery statute is not impracticable. Should the People face any burdens in producing discovery, the statute provides them numerous opportunities to petition a court for relief. For instance, the People may ask a court to modify the discovery periods for "good cause." (C.P.L. § 245.70[2]). Or they may ask a court for permission to state ready on an improper COC because of "special circumstances." (C.P.L. § 245.50[3]). Or they may ask for a protective order to withhold some materials entirely. (C.P.L. § 245.70).
II. The People's failures to disclose
The People concede they did not disclose several categories of material before filing their COC, though they unilaterally deem each category as not automatically discoverable. In addition, despite an undisclosed "companion case" in an NYPD "Index Sheet," the People state that it is their "information" that they have disclosed all DD5s related to this case. The Court takes each issue in turn.
A. NYPD "administrative records"
The People concede that they did not disclose an NYPD "prisoner movement slip" and mugshot before filing their COC, deeming them to be "mere administrative records." (Pr. Resp. at 7-8). In their view, "mere administrative records" are categorically undiscoverable. (Id.). Their definition of "mere administrative records" encompasses anything that is "not created for the prosecution of the instant charges, and would not contain any statements of a witness or other impeachment material." (Id.). According to them, this exception covers everything from the prisoner movement slip and mugshot at issue here to "command logs, roll call logs, and I-Cards." (Id.).
The Court rejects the People's categorical "administrative records" exception. This exception is nowhere to be found in the discovery statute and is also in direct contravention of the statute's plain text. Criminal Procedure Law § 245.20[1] requires that the People disclose "all" items and information in their possession that "relate to the subject matter of the case." (C.P.L. § 245.20[1]). The ordinary, common definition of "relate" means "to have a relationship or connection." (Relate, Merriam-Webster Dictionary [2022]). An NYPD document can logically "relate" to a case even if it is an "administrative record," even if it is not "created for the prosecution," and even if it does not contain "statements of a witness or other impeachment material." In any event, even if such an exception did exist-which it does not-it would not apply to the documents that the People identify here. A prisoner movement slip is created during an arrest. An I-Card is created for an arrest. And in many cases, a mugshot is also created during an arrest.
The Court must also note that the People's categorical "administrative records" exception is highly problematic. Such an exception could result in the People failing to disclose information that is not only discoverable but is also material to a case. Consider an assault case, like this one. A potentially material piece of evidence in such a case is the accused person's NYPD prisoner movement slip. In many cases, that document contains a photo of the accused person close in time to their arrest-a photo that might depict that person's injuries (or lack thereof). (See People v. Morena, 53 Misc.3d 131 [A], at *2 [Sup. Ct., App. Term, 2d Dep't 2016] [noting that "any police paperwork describing" the accused's "appearance" could show whether she was "injured on the day she was arrested"]). It also contains a person's alleged arrest time, which could be material for all sorts of legal and factual issues. (See, e.g., V.T.L. § 1194 [deeming drivers to have consented to a chemical test for alcohol for only two hours after arrest]). And it also contains some factual information about the arrest. Other potentially material pieces of discovery that the People would apparently dismiss as "mere administrative records" include I-Cards. These documents always specify whether there is probable cause to arrest someone and are often, in fact, the basis upon which officers arrest the accused. (See, e.g., People v. Washington, 75 Misc.3d 1212 [A], at *1 [Sup. Ct., Bronx County 2022] [describing an "I-Card" indicating "probable cause to arrest"]; People v. Stokley, 24 Misc.3d 1224 [A], at *1 [Sup. Ct., Kings County 2009] [describing an "I-Card" indicating "no probable cause to arrest"]). This Court does not condone the People deeming such potentially material and basic NYPD documents to be categorically beyond the reach of automatic discovery.
Indeed, the People's failure to understand why these documents are not categorically immaterial illustrates why the Legislature reformed discovery in New York. No longer is discovery subject to the whims of what an individual prosecutor thinks is important to a case. Under our reformed discovery system-one better calibrated for the adversarial process -the People are obligated to produce "all" discovery in their actual or constructive possession. They are not to decide on their own what they think would be useful for the defense or worthwhile to disclose. The People's failure to grasp their statutory discovery obligations and disclose these NYPD documents renders their COC improper.
The prior system of selective, voluntary, and belated discovery disclosures prevented the defense from being able to "intelligently investigate, secure and use any potentially exculpatory evidence, fairly weigh a guilty plea offer, or develop an appropriate trial strategy." (Sponsor's Mem. to Senate Bill S1716).
B. Memobooks for six NYPD officers
There are two groups of NYPD memobooks that the People concede they did not disclose before filing their COC. The first group is for Officers Mazurkiewicz, O'Sullivan, Rosado-Duran, and Florentino. The People note that because this case was "reassigned" from a previous prosecutor, they are "unable" to "specify what steps the previously assigned ADA" took "to obtain these memo books" from the police. (Pr. Resp. at 9). Nonetheless, the People argue that they did not have to disclose the memobooks because those memobooks were not in their "actual custody." (Id. at 8-9). They also argue that these memobooks are "duplicative" of the officers' "body worn camera footage." (Id.). The Court rejects each of the People's justifications for failing to disclose these memobooks.
It is of no moment that these memobooks are in the possession of the police and not the prosecutor's office. The discovery statute "deem[s]" "all items and information related to the prosecution of a charge in the possession of any New York state or local police" as "in the possession of the prosecution." (C.P.L. § 245.20[2]). It also mandates that the People "shall endeavor to ensure that a flow of information is maintained between the police and other investigative personnel and [their] office." (C.P.L. § 245.55[1]). And to make that efficient, the statute additionally requires that, "upon request by the prosecution," the police "shall make available to the prosecution a complete copy of its complete records and files related to the investigation of the case or the prosecution of the defendant for compliance with this article." (C.P.L. § 245.55[2]). In other words, to get the police file for a case, by law, all the People must do is ask. Here, the People are not even able to reconstruct what, if any, steps they took to obtain these memobooks. (See Pr. Resp. at 9). Their failure to disclose means they did not properly certify compliance.
Moreover, the Court rejects the People's claim that the undisclosed memobooks are "duplicative" of body-camera footage. As an initial matter, this appears to be pure speculation, as the People do not actually state whether they have even reviewed the missing memobooks. (See id.). It certainly is not always true that everything a police officer writes in their memobook is necessarily captured on their body-worn camera. But regardless of whether the People think they are "duplicative," police writings about a case are explicitly automatically discoverable under C.P.L. § 245.20[1][e]. "It is not the People's decision to look at two entirely different [items] and decide that they believe one contains information 'duplicative' of the other" and so need not be disclosed. (People v. Ajunwa, 75 Misc.3d 1220 [A], at *4 [Crim. Ct., Bronx County 2022]). "That is not the People's determination to make." (People v. Williams, 72 Misc.3d 1214 [A], at *5 [Crim. Ct., NY County 2021]). Otherwise, by disclosing body-worn camera footage, the People would transform a bulk of other discovery into non-discoverable items. Nothing in the statute supports such an extraordinary proposition. At the very least, if something falls under the Legislature's explicit, enumerated list in C.P.L. § 245.20-like these memobooks-then the People must disclose it. (Id.).
The other group of memobooks that the People failed to disclose is for "domestic violence officers" Piccione and Cabral-Rosario. The People claim these memobooks are not discoverable. (Pr. Resp. at 10). They argue they are not discoverable because these officers "did not respond to the scene of the incident and therefore any memobook entries... would not be relevant to the prosecution." (Id. at 9). They further argue that Officer Cabral-Rosario did not conduct any "successful" home visits and was "only assigned to this case for a single day." (Id.). They note the case was then "transferred" to Officer Piccione. (Id.).
The Court rejects the People's argument that follow-up visits by "domestic violence officers" in a domestic-violence case are unrelated to the case simply because those officers do not "respond" to the incident. "If domestic-violence officers visit a domestic-violence complainant after an alleged domestic-violence incident, that is clearly related to the domestic-violence case." (People v. Amir, 2022 NY Slip Op. 50856[U], at *4 [Crim. Ct., Bronx County 2022]). Indeed, the People describe these officers as "assigned to this case." (Pr. Resp. at 9 [emphasis added]). Therefore, these officers' paperwork and visits-whether successful or not, and whether regarding "a single day" of policework or more-plainly "relate" to the case and are automatically discoverable. (See Amir, 2022 NY Slip Op. 50856[U], at *4).
The People finally claim that all the memobooks for all six of these officers are not automatically discoverable. They conclude this because they are not going to call the officers to testify. (Pr. Resp. at 9-10). They also claim it is "extremely unusual to find notes pertaining to a case in an officer's memo book other than that of the arresting officer." (Id. at 10 [internal quotation marks omitted]).
The Court rejects these arguments, as well. Nothing in the discovery statute exempts an officer's paperwork from discovery simply because the People choose not to call them to testify. To the contrary, C.P.L. § 245.20[1][e] explicitly requires that the People disclose "[a]ll" written statements by officers "who have evidence or information relevant to any offense charged or to any potential defense thereto." There is no exception for "non-testifying" officers. (See C.P.L. § 245.20[1][e]).
Further, the Court rejects the People's bizarre claim that it is "extremely unusual" for an officer who is not the arresting officer to make notes in their memobook regarding a case. It is common knowledge that in most cases-if not every case-officers investigating an incident make notes about it in their memobooks, regardless of whether they are designated as the "arresting officer." In any event, the discovery statute does not ask the People to speculate about what might be in a memobook and then make a unilateral determination about whether to ascertain it. If an officer is involved in a case, the People must turn over any notes in their memobook that relate to the case. Here, the People have not even said whether they looked at these memobooks before determining they contained nothing discoverable. This means their certificate of discovery "compliance" was not proper.
C. DD5s from a "companion case"
The defense has submitted a DD5 "Index Sheet" suggesting that the People have also failed to disclose further paperwork from Officer Piccione. (Def. Reply at 2; Def. Reply Ex. 2). This Index Sheet refers to a "companion case" numbered "2022-541." (Def. Reply Ex. 2). It was opened "01/31/2022," which is the day after the date of the alleged incident in this case. (Id.). The case title is listed as "EDDY / ASLT 3" with the complainant's name and "CLOSED - ARREST." (Id.). The "case type" is listed as "domestic violence." (Id.).
This document suggests that Officer Piccione played a role in this case from the day after the incident. It also suggests that the People have failed to disclose the entirety of an NYPD "companion case" that includes additional DD5s. In response, the People say only that it is their "information" that "all DD5s were turned over" when the COC was filed. (Pr. Resp. at 11). Without any factual basis for this conclusion, or any specification about the source of this "information," the Court cannot find that the People adequately ascertained and disclosed the reports associated with this "companion case."
D. Scratch" prior domestic incident report
The People concede that they have not disclosed a "scratch" domestic incident report ("DIR") of a prior incident. It is not immediately clear to the Court whether this DIR relates to this case. The parties have not specified who is named in this DIR or how it relates. However, the People intimate, though they do not clearly state, that the DIR is "background material." (Pr. Resp. at 11). Moreover, citing C.P.L. § 245.20[3], the People argue that "even if prior Domestic Incident reports are related to the subject matter of a case," the People are "not required" to disclose them before filing a COC. (Id. at 10). They also assert that the "scratch" version of the DIR is "merely duplicative" of the typed one disclosed. (Id.).
Here, the People conflate the disclosure requirement of C.P.L. § 245.20[1] with the notice requirement of C.P.L. § 245.20[3]. Under C.P.L. § 245.20[1], if material relates to the case, the People must disclose it. A proper COC is one filed when the People "have provided the discovery required by" C.P.L. § 245.20[1]. (C.P.L. § 245.50[1]). Therefore, if a prior DIR relates to the case, the People must disclose it before filing their COC.
The People's cited section of C.P.L. § 245.20[3] is about notice, not disclosure. Under that section, the People must, shortly before trial, "disclose to the defendant a list of all misconduct and criminal acts... which the prosecution intends to use at trial." (C.P.L. § 245.20[3] [emphases added]). This section does not mean that the People are not required to disclose reports about related prior misconduct with automatic discovery. It only means that the list identifying what the People intend to use at trial need not be disclosed until later.
Because the People appear to characterize the prior DIR here as "background material," the Court concludes that it relates to the case. This is supported by context. In domestic-violence cases, the People often admit the substance of prior DIRs as "background information" about the relationship between the accused and the complainant. (E.g., People v. Swift, 195 A.D.3d 1496 [4th Dep't 2021]). The Court reads the People's response in that context. Insofar as the prior DIR at issue here is "background material" that relates to the case, the People were required to disclose it before filing their COC.
The People's unilateral assertion that the "scratch" DIR is "merely duplicative" of the typed DIR does not survive the strictures of the discovery statute. The People are required to disclose "all" items and information that "relate" to the case. (C.P.L. § 245.20[1]). The difference between a "scratch" DIR and a typed DIR is not merely one of photocopying. These are two separate reports-one is an original copy handwritten by the witness, the other is a proxy report typed later by a police officer. (See People v. Lee, 116 A.D.3d 493, 496 [1st Dep't 2014] [noting the difference between "scratch" notes of a complainant's statements and the later typed report]; People v. Croons, 231 A.D.2d 585, 585 [2d Dep't 1996] [noting the same]; People v. Morton, 189 A.D.2d 488, 491-92 [2d Dep't 1993] [noting the same about a "scratch" line-of-duty injury report and later typed police report]; see also In re Ricardo M., 12 Misc.3d 1187[A], at *2 [Fam. Ct., Richmond County 2006]). It is not for the People to unilaterally deem a scratch report to be "duplicative" of a later typed report and to then disclose the typed report only. "That is not the People's determination to make." (Williams, 72 Misc.3d 1214[A], at *5). Article 245 "relieves the People of having to define what is or is not discoverable" in a police file. (Id.). The statute requires that the People disclose "[a]ll" writings by persons who have information relevant to any offense charged or to any potential defense. (C.P.L. § 245.20[1][e]). Here again, the People fail to establish that they met their discovery obligations before filing their COC.
E. Police misconduct records
This Court has explained on other occasions why prior misconduct records for officers involved in a case are automatically discoverable regardless of whether the People call those officers to testify. (Amir, 2022 NY Slip Op. 50856[U], at *5-*6; People v. Figueroa, 2022 NY Slip Op. 22278, at *4-*5 [Crim. Ct., Bronx County 2022]). The People are required to disclose "all" favorable information. (C.P.L. § 245.20[1][k]). The statute "abandons" any requirement that only "materially" favorable information be disclosed. (NY State Assembly, Memorandum in Support of Legislation, A4360A).
In their response, the People assert they do not intend to call these officers to testify. The defense argues that the People do, in fact, intend to call these officers to testify, citing their assertion of that in their Automatic Disclosure Form. Either way, the Court would reach the same conclusion.
" One reason an officer's prior misconduct could be favorable is for impeaching the credibility of a testifying prosecution witness[,] [b]ut that does not mean that is the only reason such records could be favorable." (Amir, 2022 NY Slip Op. 50856[U], at *6 [internal quotation marks omitted]). "The categories of favorable information are not all mutually exclusive." (Id.). "A contrary conclusion would permit the government to avoid disclosure of exculpatory or impeachment material simply by not calling the relevant witness to testify." (United States v. Jackson, 345 F.3d 59, 70-73 [2d Cir. 2003]).
Prior misconduct by officers involved in a case could, for instance, negate the accused person's guilt or support a potential defense. (C.P.L. §§ 245.20[1][k][i], [iii]). It could be "a worthwhile source of [defense] investigation" into the police's interactions with a complainant or witnesses in the case. (Amir, 2022 NY Slip Op. 50856[U], at *5-*6; People v. Carswell, 67 Misc.3d 444, 448-49 [Crim. Ct., Bronx County 2020] [noting that the discovery statute was enacted in part to allow the defense to "properly investigate" cases]; see also Eric Gonzalez, Reckoning with Wrongful Convictions: Lessons Learned from An Examination of 25 Wrongful Convictions in Brooklyn, 35 Crim. Just. 4 [2021] ["In two cases, the [Conviction Review Unit] concluded that the police likely engaged in misconduct by coaching the witness."]).
The defense may also seek to use such prior misconduct to undermine the integrity of the investigation that "led to [the instant] arrest[]," regardless of whether the People call the officer to testify. (Jackson, 345 F.3d at 73; see also Longus v. United States, 52 A.3d 836, 849-54 [D.C. Ct. App. 2012] [defense properly sought to question officer involved in the instant investigation, but not called by the prosecution, about coaching witnesses in separate case]; Smith v. United States, 26 A.3d 248, 260-63 [D.C. Ct. App. 2011] [same]).
The People argue that a "number of courts" have "specifically examined this issue" and "reached the same conclusion" as them, but they fail to cite any. (Pr. Resp. at 6). Instead, they cite: (1) People v. Garrett, 23 N.Y.3d 878 [2014], which is not a case that turned on whether information was favorable; and (2) lower court cases from 2020 that held police disciplinary records were never automatically discoverable, a claim that now runs contrary to the bulk of published case law, (see Best, 2022 NY Slip Op. 50859[U], at *4-*6 [collecting cases requiring disclosure of all underlying police misconduct records]; Matter of Jayson C., 200 A.D.3d 447, 449 [1st Dep't 2021] [holding that the plain text of C.P.L. § 245.20[1][k] requires disclosure of all underlying information relating to misconduct by police witnesses]; People v. Polanco-Chavarria, 74 Misc.3d 1210 [A], at *4 [County Ct., Rockland County 2021] [analyzing Jayson C. ]).
Here, the People fail to state that they even "examined" the "personnel and disciplinary" files of the officers involved in this case before concluding that they could not possibly be favorable. (See People v. Altug, 70 Misc.3d 1218 [A], at *3 [Crim. Ct., NY County 2021] [Weiner, J.]). Indeed, their position that such information is categorically undiscoverable suggests they did not do so. As such, they failed to discharge their discovery duties before filing their purported certificate of discovery compliance. (Id.).
III. The lack of "good faith" or "diligent" compliance
The Court rejects the People's position that they established "good faith" or "diligent" compliance with the discovery statute before filing their COC. As an initial matter, this Court does not believe that an assertion of "good faith" or "due diligence" renders a COC proper if the People fail to produce automatic discovery in their actual or constructive possession. (See, e.g., People v. Vargas, 171 N.Y.S.3d 877, 879-82 [Crim. Ct., Bronx County 2022]; Ferro, 197 A.D.3d at 787-88).
Setting that aside, however, the statute does not provide for the People to make "good faith" determinations about what falls under the discovery statute. That "the People might have applied good faith and due diligence in making their own determination" that certain records "do not - or should not - fall within the statute is of no moment." (People v. Soto, 72 Misc.3d 1153, 1162 [Crim. Ct., NY County 2022]). "That is not the People's determination to make." (Id.). Article 245 "relieves the People of having to define what is or is not discoverable" in a police file. (Id.). Particularly relevant here, the statute requires the People to disclose all "statements, written or recorded" by police "who have evidence or information" relevant to the offenses charged. (C.P.L. § 245.20[1][e]). That includes all memobooks, DD5s, and all other paperwork in the police file.
If the People nonetheless believe that some NYPD materials are not discoverable, the statute provides a "process" for them to "follow." (Best, 2022 NY Slip Op. 50859[U], at *7). "[P]rior to filing the certificate of compliance," they must "seek a protective order" and ask a court to "rule as to whether the People may withhold" the documents. (Id.). "[I]t is not for the People alone to make this determination." (Demonia, 74 Misc.3d at 759). The discovery statute grants only specific and limited exceptions to this rule. (See, e.g., C.P.L. § 245.20[1][c] [allowing the People to withhold physical addresses and the identities of 911 callers and confidential informants "without need for a motion"]; C.P.L. § 245.20[1][d] [same for materials relating to undercover personnel]).
The statute also provides a process if the People require more time to comply with discovery. If, for instance, the People face significant trouble obtaining memobooks or DD5s from the police, they must move a court to modify the discovery periods by establishing "good cause." (C.P.L. § 245.70[2]). If they believe, as they argue here, that obtaining police misconduct records is overly burdensome, they must do the same. (See id.).
Here, however, the People did not follow any of these processes. The People never sought a "determination and ruling of the court" as to whether any of these materials were, in fact, "non-discoverable." (C.P.L. § 245.10[1][a]; see also Best, 2022 NY Slip Op. 50859[U], at *7 [same]; Payne, 75 Misc.3d 1224[A], at *4 [same]; Demonia, 74 Misc.3d at 759 [same]). Instead, they made unilateral determinations on their own, without permission from any court. The People similarly never asked a court to modify the discovery periods for good cause. (See, e.g., People v. Spaulding, 75 Misc.3d 1219 [A], at *3 [Crim. Ct., Bronx County 2022]; see also C.P.L. § 245.70[2]).
As a result, the People cannot be said to have complied with the statute in good faith or with diligence. (See Spaulding, 75 Misc.3d 1219[A], at *3 ["Where the People do not seek any of these numerous opportunities for relief, they cannot be said to have exercised due diligence before filing their COC."]). Instead of following the process in Article 245, the People here did what they "may not do"-they "file[d] a certificate of compliance in which they claim[ed] to have exercised due diligence and turned over all known material and information while at the same time not actually turning over all known material and information." (Quinlan, 71 Misc.3d at 271; Adrovic, 69 Misc.3d at 574 [same]).
IV. C.P.L. § 30.30 calculation
The only way that the People may state ready for trial on an improper COC is if the court finds special circumstances. (C.P.L. § 245.50[3]). There are no such special circumstances here. The People's unilateral justifications for failure to disclose materials and their office failure to secure NYPD paperwork do not constitute special circumstances. (See People v. Guzman, 75 Misc.3d 132 [A], at *3-*4 [Sup. Ct., App. Term, 2d Dep't 2022]; Soto, 72 Misc.3d at 1162).
The C.P.L. § 30.30 clock commenced at arraignments on January 31, 2022. As explained above, the People's statements of readiness were not preceded by a proper certificate of discovery compliance. (See C.P.L. § 245.50[3]). Therefore, they were illusory. Time continued to accrue until the defense filed this motion on June 27, 2022. (C.P.L. § 30.30[4][a]). That is 147 days, more than the maximum time allotted by law. (See C.P.L. § 30.30[1][b]). Therefore, the defense's motion to dismiss must be GRANTED.
The defense's remaining arguments and motions are moot.
The foregoing constitutes the decision and order of the Court.